Should police and health officials notify members of the public if a diseased sexual predator is on the loose? Should they warn everybody of the danger – or just some people?

The City of Windsor and its taxpayers could be on the hook for up to $40 million in damages because two of their public agencies did not warn four women they might become infected with HIV by notorious serial sex offender Carl Leone.

If the four win there could be even more lawsuits because at least 20 women were infected by him, Ontario Superior Court was told Monday.

Windsor’s Police Services Board and the regional Health Unit both asked the court to throw out the first lawsuits based on ample legal precedent.

Oddly, both sides are citing some of the same cases as support for their positions – including the famous Toronto Balcony rapist case known as Jane Doe vs. Board of Commissioners.

At issue in the complex motion heard by Justice A. Duncan Grace on Monday is the “duty of care” level owed by the two agencies to the public and to the women, whose identities are being protected by the court. They’re being referred to simply as Jane Roe – a pointed reference to the Toronto case – M.W., S.R. and L.R.

The city’s lawyers are arguing their clients simply owed a “public law duty of care,” which they discharged properly by investigating Leone’s sexual activities as far they could before his trail of sexual conquests ran cold.

The women’s lawyers argue that the two agencies and their officials owed their clients a higher level of protection – a “private law duty of care,” meaning police and medical officials should have gone farther to identify Leone’s potential victims and notify them of the danger he posed.

Leone is currently serving 18 years in Warkworth Prison near Peterborough for aggravated sexual assault. More than 70 people came forward for testing after Leone’s unprotected sexual rampage was uncovered and he was jailed to protect the public pending his trial. His motive appears to have been revenge for his own infection by an exotic dancer from Thailand employed by a West end Windsor strip club.

Police and the Windsor-Essex Health Unit have asked Justice Grace to toss the women’s lawsuits out of court in a summary judgment that would end the plaintiffs’ claims against Windsor taxpayers. If the judge rules a trial should take place it will go ahead in March of next year.

A trial promises to be lengthy and expensive for the public, lawyers for the public agencies told the court.

A crucial legal concept being weighed by Judge Grace is the legal “proximity” of the victims to police and the health unit. The agencies would have had to know the common thread linking Leone’s victims before they could have warned them. In fact they hailed from Windsor to Leamington, Detroit and Texas.

The group of women Leone chose to pursue “was unknowable,” said lawyer Brian McCall, representing the health unit. “We have no way of knowing who are members of that indefinable class.”

In the Jane Doe case, police knew a rapist was stalking only young Caucasian women in a particular neighbourhood, in specific apartment towers. Police lost their case when Jane Doe sued them for failing to notify her or the residents of her building. She won $220,000 in damages.

Windsor’s lawyers also compare Leone’s four HIV lawsuits to a class action lawsuit by Toronto-area victims of the West Nile virus. Ontario’s court of appeal overruled two lower courts in 2006 to say that the Ministry of Health could not be held responsible for the infections, or for failing to eradicate the virus.

The ministry had no “proximity” to either the infected mosquitos or their victims, and so it couldn’t stop the former or protect the latter, MCall argued.

Justice Grace leaped on that argument. If the ministry had had possession of the infected mosquito that caused West Nile virus, “would it have the duty to control that mosquito?”

Leone, Grace said, was “a specific mosquito. What if (they knew) the moquito was in Room X?”

Bill Sasso, representing the four women, told the court that both the health unit and the police department had proof that Leone was infected with HIV, knew he was defying the law by having unprotected sex with women without disclosing his condition, and even knew some of the women he was sleeping with. Yet they warned no one.

At the police department, front line officers properly recorded a public complaint from a former girlfriend of Leone’s that could have taken him off the street years before the law did. But someone higher up in the police bureaucracy mistakenly filed the complaint in a “closed” file, so detectives never followed it up.

At the health unit, Leone’s medical file mysteriously disappeared for four years, court was told, while several senior officials there remained mum about his HIV toxicity even to women they knew were having unprotected sex with him.

Several women told health unit officials they were having unprotected sex with Leone while being tested for other STDs they may have contracted form him, including gonorrhea and genital warts.

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